Court: Checking sports scores or personal e-mail at work no crime

Workers in nine western states, including those in Silicon Valley, can now check their personal e-mail and sports scores without fear of federal prosecution, thanks to a ruling from a federal appeals court.

An en banc panel of the U.S. Court of Appeals for the Ninth Circuit voted, 9-2, to reject the Justice Department's interpretation of the Computer Fraud and Abuse Act—an interpretation which the court said ran the risk of criminalizing the conduct of millions of Americans.

"Minds have wandered since the beginning of time and the computer gives employees new ways to procrastinate, by g-chatting with friends, playing games, shopping or watching sports highlights. Such activities are routinely prohibited by many computer-use policies, although employees are seldom disciplined for occasional use of work computers for personal purposes. Nevertheless, under the broad interpretation of the CFAA, such minor dalliances would become federal crimes," Chief Judge Alex Kozinski wrote in an opinion replete with pop culture and tech references. (FarmVille and www.dailysudoku.com get shout outs.)

Kozinski said the dangers of reading the law that way would actually go beyond prosecuting employees to prosecuting anyone who violates a website's terms of service, such as those who lie on dating sites. "Under the government’s proposed interpretation describing yourself as 'tall, dark and handsome,' when you’re actually short and homely, will earn you a handsome orange jumpsuit," the judge complained. The court's ruling upheld a lower court's order striking five counts of an indictment against an executive charged with conspiring with former colleagues to steal data from his ex-employer.

Kozinski, a Reagan appointee is one of the federal bench's best known libertarians, a fact he alluded to in the opinion when he said one activity employees could theoretically be punished for was watching Reason.TV—the video site associated with the libertarian magazine of the same name.

The dissenters were Judges Barry Silverman and Richard Tallman, both Clinton appointees. They said the conduct alleged in the case was clearly wrong and didn't fit the kinds of hypotheticals Kozinski cited where individuals were unaware of the precise rules that applied to their computer use.

The decision creates a split with several other circuits, which could lead to review by the Supreme Court.

A Justice Department spokeswoman said lawyers there are reviewing the ruling.